Published Jan. 27, 2015, in the Toronto Star.
Like many Canadians, I was saddened to hear about the death of Makayla Sault, the 11-year-old girl who died after choosing traditional aboriginal medicine over chemotherapy to treat her leukemia. Unlike the majority of commentators in the media, however, I was not outraged by her death or by the refusal of the courts to choose provincial legislation over Aboriginal rights. Instead, this outcome was simply the logical product of how Canada has chosen to balance and protect different and competing individual and group rights.
The Charter of Rights and Freedoms gives all of us a set of individual rights by virtue of being citizens of Canada. At the same time, some Canadian citizens enjoy additional rights that accrue to them on the basis of their membership in one or more demographic or cultural groups. For instance, French-speaking Canadians have the right to communicate with the federal government in French whereas I, as a Filipino-Canadian, do not have the right to use Tagalog, a Filipino dialect, to do the same.
Francophone rights are not the only group rights protected by our constitutional and legal order. Others include gender, religion and Aboriginal rights, all of which seek to protect historically vulnerable groups in ways unique to each case.
Aboriginal rights have particularly complex origins, rooted as they are in the many historical and modern treaties signed with the Crown, but also in a number of pre- and post-Confederation constitutional documents like the Royal Proclamation of 1763 and the Constitution Act of 1982. As a result, Aboriginal rights empower their holders with a unique legal and moral basis to protect their traditional and evolving cultures, customs and internal constitutional orders in a myriad of ways. In Canadian law, we refer to this basis as Aboriginal self-government or self-determination.
So, in the case of Makayla Sault and other similar situations, legislation like the Child and Family Service Act can rightly and justly be ignored by Indigenous community leaders and members. The special group rights that Indigenous groups have through Canada’s Constitution and through their treaties with us means that they have the right to make unilateral decisions affecting their communities and members within the confines of their traditional and evolving customs and practices.
In many ways, then, the death of Makayla Sault is not as outrageous and illogical as most mainstream commentators portray. Instead, it very accurately reflects a legal and political reality that is consistent with Canada’s approach to human rights. Our country recognizes that all Canadians, including Indigenous peoples, have individual and group rights, and that different groups, by virtue of their inherent differences, also have different or asymmetrical sets of rights.
Some Canadians may chafe at this analysis and see it as being the root of the “Aboriginal problem” in this country. All of us, however, need to realize and accept this logic if we hope to build a respectful and just relationship with Indigenous peoples. This is especially true if we believe that the multicultural and multinational character of Canada is worth protecting.